Section 42 of the Criminal Justice and Licensing (Scotland) Act 2010 provides for a new offence criminalising the the possession of extreme pornographic material. It came into force on 28 March 2011. An information note on the new offence, including Frequently Asked Questions is available.
The Scottish Government announced it would introduce a new offence, criminalising possession of extreme pornography in September 2008. This followed a joint consultation by the Scottish Government (then the Scottish Executive) and the Home Office on proposals to criminalise the possession of extreme pornographic material. Ninety three responses were received to this consultation. An analysis of the responses received was published in June 2006 along with the 68 responses from respondents who agreed to their views being shared. Copies of the responses can also be obtained from the Scottish Government Library.
Summary of the new offence
The new offence, which is contained at section 42 of the Act, criminalises the possession of obscene, pornographic images which explicitly and realistically depict:
- an act which takes or threatens a person's life
- an act which results or is likely to result in a person's severe injury
- rape or other non-consensual penetrative sexual activity
- Sexual activity involving (directly or indirectly) a human corpse
- An act which involves sexual activity between a person and an animal (or the carcase of an animal)
The maximum penalty for the new offence will be three years imprisonment.
The new offence is similar to that at section 63 of the Criminal Justice and Immigration Act 2008, which applies in England, Wales and Northern Ireland. The Scottish offence goes further than that offence, however, in that it covers all images of rape and non-consensual penetrative sexual activity, whereas the English offence only covers violent rape.
The offence will not catch those who accidently come into contact with this type of material and the provisions contain a defence to this effect. There is also a defence for those who can prove that they participated in the act depicted, that the extreme nature of the act was apparent and not real and there is no intention to distribute the material.
Under section 51 of the Civic Government (Scotland) Act 1982, it is already illegal to publish, sell or distribute or to possess with a view to selling or distributing, obscene material, including the obscene pornographic material which is covered by this new offence. The Bill therefore contains provisions to increase the maximum penalty under section 51 of the 1982 Act in respect of extreme pornographic material from three to five years.
An equality impact assessment has been produced.